The above-entitled causes are suits in equity in which complainants seek an in *947 terlocutory injunction to enjoin the enforcement of orders issued by the Public Service Commission of Montana, reducing the rates and charges collected by the complainants on the sale and distribution of natural gas, water, and electricity on the ground that such reduction amounts to a taking of their property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States. Temporary restraining orders, and orders to show cause why interlocutory injunctions should not be granted, were issued. The matters now before the court for consideration relate to the motions to dismiss the three bills of complaint, dissolve the temporary restraining orders, and quash the orders to show cause why interlocutory injunctions should not issue.
The questions of law involved in the three cases are the same with the exception of the one in reference to a reasonable hearing and the bias and prejudice of a commissioner as hereinafter considered. The fact situation is different in the first two respecting alleged confiscatory rates. It is also admitted that practically the same questions are involved in Horning v. Public Service Commission et al., as in the others, with some variation as to the facts. Motions to dismiss for lack of jurisdiction have been filed and submitted in all three cases, which will be taken up at this time. The issues for immediate consideration were outlined by counsel for complainants and assented to by counsel for defendants, in statements made at the hearing to the effect that they are willing to submit these motions, and if the court after consideration should entertain jurisdiction that then an interlocutory injunction may be issued on the allegations of the complaints. being admitted for that purpose only; and that if on final decision of said motions by the higher court jurisdiction is sustained, then counsel will expect to have a time set for a hearing on the merits.
The questions of principal importance are whether, in the language of the Johnson Act (48 Stat. 775) (Section 41, subd. 1 of title 28, U.S.C.A.), there exists a plain, speedy, and efficient remedy in the state district court of Montana, and whether a reasonable hearing was accorded complainant Montana Power Company, in view of the alleged bias and prejudice of a commissioner. Complainants allege jurisdiction in this court by virtue of the provisions of section 266 of the Judicial Code (28 U.S.C.A. § 380), irrespective of the Johnson Act, which is amendatory of the first subdivision of section 24 of the Judicial Code (28 U.S.C.A. § 41 (1), and is in the following words: “Notwithstanding the foregoing provisions of this paragraph, no district court shall have jurisdiction of any suit to enjoin, suspend, or restrain the enforcement, operation, or execution of any order of an administrative board or commission of a State, or any rate-making body of any political subdivision thereof, or to enjoin, suspend, or restrain any action in compliance with any such order, where -jurisdiction is based solely upon the ground of diversity of citizenship, or the repugnance of such order to the Constitution of the United States, where such order (1) Affects rates chargeable by a public utility, (2) does not interfere with interstate commerce, and (3) has been made after reasonable notice and hearing, and where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State.”
Section 3906 of the Revised Codes of Montana, or so much thereof as is pertinent, reads as follows: “No injunction shall issue suspending or staying any order of the commission except upon' application to the court or judge thereof, notice to the commission having been first given and hearing having been had thereon; provided, that all rates fixed by the commission shall be deemed reasonable and just, and shall remain in full force and effect until final determination by the courts having jurisdiction.” This section would seem to prohibit the granting of any injunctive relief until final determination by the courts having jurisdiction; during that time the rates fixed by the commission are to be deemed reasonable and just and are to remain in full force and effect. The Montana Supreme Court has had occasion to refer to this section substantially as it reads, and without passing upon its validity, citipg sections 3905, 3906 and 3911, Rev. Codes 1921, in State ex rel. Public Service Commission v. Great Northern Utilities,
The only case found by counsel construing the language of the Johnson Act, of special interest to us, is that of Cary, Trustee, v. Corporation Commission of Oklahoma,
On the part of complainant Montana Power Company, it is further- contended that a reasonable hearing was not accorded because of the bias and prejudice of Commissioner O’Connell, one of the members of the board, in this, that he had prejudged the case long before the hearing took place, which, in effect, amounted to a denial of due process of law, by compelling this company to submit to a hearing before a commissioner who had already announced on several public occasions his opinion on the issues thereafter submitted to him as a member of the Public Service Commission of Montana. There appears to be no statute of Montana allowing the disqualification of such an officer for bias or prejudice, and no provision made for a substitute if it could be done. Irrespective of any opinion Commissioner O’Connell may have expressed against the power company, or public utility companies generally, during the heat of a bitter political contest, after it was over, and he found himself elected and had an opportunity for sober reflection upon the responsibilities, of his office, and had taken an oath to discharge the duties of his office with fidelity, then, in the absence of a statute governing such a situation, the presumption is that, in a case being considered, the commission, of which O’Connell was one member, would act without bias or prejudice, and would be guided in rendering a decision solely by the evidence submitted. Complaint is also made that O’Connell exhibited his prejudice during the hearing. A disagreeable or sarcastic attitude on the part of a commissioner would not necessarily indicate that he would disregard the evidence and his oath of office and decide *949 the matter before him in a manner contrary to both. The Public Service Commission is the only commission or body in the state that can act in cases of this character. If it were possible to disqualify one or more commissioners for utterances made in advance of an election to membership on such a commission, then it would seem difficult to determine how such a board would ever be able to function when members were confronted with evidence of having made prejudicial remarks.
In the Mueller Case (State ex rel. Mueller v. District Court),
When the present case was pending before the commission, it required the vote of Commissioner O’Connell to reach a decision, since it appears that one of the three, Commissioner Young, declined to vote.
The jurisdiction of this officer was exclusive, and, as before mentioned, there was no provision in the statute for a substitute. Defendants have aptly cited the rule of necessity as applicable here, and as found in 15 R.C.L. 541, as follows: “29. Doctrine of Necessity. It is well established that the rule of disqualification of judges must yield to the demands of necessity, as, for example, in cases where, if applied, it would destroy the only tribunal in which relief could be had. The true rule unquestionably is that wherever it becomes necessary for a judge to sit, even where he has an interest, if no provision is made for calling anoth,er in, or where no one else can take his place, it is his duty to hear and decide, however disagreeable it may be. The rights of the other party require it. The same' rule obtains in the English Courts.”
Adverting again to .the subject of due process of law, there seems to be no ground for serious argument that if the statute provides for a judicial review of the particular order made or agreed to by a prejudiced commissioner, then there is no denial of due process of law. Several cases are cited which appear to bear out this contention. See Davidson v. New Orleans,
The statute in the instant cáse does not provide for a review of the rates, but defendants contend that since there exists the right of review of the commission’s order due process of law is preserved, and any error based upon prejudice rather than evidence can be corrected by complainants through court proceedings had before an impartial tribunal; *950 so that an order having no better ground for its promulgation can be set aside in the higher court on a proper showing.
Among the many authorities presented on this subject was the case of Georgia Continental Telephone Co. v. Georgia Public Service Commission (D.C.)
But to continue our examination of the question raised in the exception contained in the Johnson amendment by referring to some of the authorities relied upon, the briefs disclose that opposing counsel have voiced opposite opinions in the interpretation of certain relevant authorities; the principal one being Porter v. Investors’ Syndicate,
It clearly appears from this decision that section 3906 is unconstitutional in so far as it prohibits the issuance of a restraining order during the pendency of the suit. The court further held: “We are persuaded to this view for the reason that it supports the constitutionality of the act, and we are bound if fairly possible to construe the law so as to avoid the conclusion of unconstitutionality. Bratton v. Chandler,
Where, as ancillary to the review and correction of administrative action, the state statute provides that the complaining party.may have a stay until final decision, there is no deprivation of due process, although the statute in words attributes final and binding character to the initial decision of a board or commissioner. Pacific Live Stock Co. v. Lewis,
But it will have to be conceded that the Porter Case holds J:hat such a statute as section 3906 is clearly in violation of the Federal Constitution. It will be observed in the Kuykendall Case, supra, that the United States Supreme Court held that a litigant whose constitutional rights are being invaded, and to whom a statute denies a supersedeas in the state court, may properly base his application for equitable relief on the effect of the statute and the presumption of its validity, and is not required to establish that the state statute is not valid under the State Constitution. In that case the issue was over a conflict 6f the statute with the State Constitution. But that is no authority to ■ guide us in this case; here no presumption of validity can be indulged in, in the face of the Porter decision, and besides, no action is required here to determine whether the state statute is invalid under the State Constitution. Here it has been held that the section of the state statute now being considered is violative of the provisions of the Constitution of the United States, and in such a situation it is plainly indicated in the case last cited that sections 9243 et seq., Revised Codes of Montana, 1921, would permit the court to grant a stay upon a proper showing. The language of the opinion in the Porter Case in considering that proposition in section 4038, of the above state statutes, is as follows : “The first clause would obviously permit the issuance of an interlocutory injunction upon a proper showing, especially in view of the provisions of the Code of Civil Procedure.” This was said following the interpretation of the word “pending” and defining it as meaning “until.” Now does this view of the case point the way to a plain, speedy, and efficient remedy? It seems to the court that all the complainants would have to do would be to commence their suits in the state court and make a showing for injunctive relief, citing the provisions of the Porter Case; and that such relief would have to be granted, if they were found to be entitled to it. And, furthermore, it is of interest to note here that Judge Angstman, counsel for the commission, both in his oral arguments and in his briefs, which are also signed by the Attorney General, has conceded that an injunction may be issued during the pendency of such suits in the state court, on a proper showing, on the authority of the Porter Case and the general statute, and that he' could not oppose such an interpretation of the law as it now stands and as applied to section 3906; that the other provisions of the state statute would apply; and that the state court would have to treat the unconstitutional provisions of section 3906, respecting the denial of injunctive process, as if they were not written therein, and as wholly void 'and of no effect. Ex parte La Prade,
Certain questions involved in the Montana Power case are not raised in the Horning and Butte Water Company cases; no question in the latter two as to being deprived of a reasonable hearing by the Public Service Commission; and counsel seem to be in agreement here that it is not necessary to apply for a rehearing before commencing suit. In addition to the question common to all in the above-entitled causes, as to a plain, speedy, and efficient remedy, in the Horning case,
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defendants also contend that there is not involved in this controversy the sum or value of $3,000, exclusive of interest or costs. Counsel also seem to be in agreement in all cases that the remedy provided by section 3906, in the state court, is a judicial and not a legislative remedy, which the court accepts as a self-evident fact from the plain language of the statute itself. As to the lack of the sum or value required in the Horning case to confer jurisdiction, that question seems to be settled by the allegations of the complaint itself considered with the motion to dismiss, and therefore is not deemed of sufficient importance to merit further discussion. The contention that application should be made to the commission by the Montana Power Company for a rehearing or modification of its order before commencing suit seems untenable in view of the weight of authority cited- to the contrary. In Prendergast & Public Service Comm. of N. Y. v. N. Y. Tel. Co.,
In Porter v. Investors’ Syndicate, we have a decision which was intended primarily for the enlightenment of both federal and state courts in Montana, and is a plain direction to hold such a law as we have been considering in section 3906, denying a supersedeas or stay, unconstitutional and void, as violative of the provisions of the Constitution of the United States, for the reason that it would permit the taking of the property of the complainants without due process of law, which is contrary to the Fourteenth Amendment.
Wherefore, this court concludes that it is wholly without jurisdiction to hear and determine the above-entitled causes. Since considering the issues herein and agreeing to the foregoing opinion, in which all three judges concurred, the plaintiffs Montana Power Company and Butte Water Company have come to an understanding with the Public Service Commission of Montana for an adjustment of the rates in controversy, and have filed herein a stipulation and motion for the dismissal of the causes of the above-named plaintiffs, and have submitted a form of order of dismissal, which all members of the court have examined and approved.
Now, therefore, according to agreement as expressed in the foregoing stipulations of counsel for the respective parties, the motions to dismiss aforesaid, based upon said stipulations, are hereby granted. As to the suit of Fred A. Horning, No. 1514, the motion of the defendants to dismiss is also granted.
All concur.